Barbara Lee v. VA State Board of Election

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:15-cv-00357-HEH-RCY. [999985493]. [16-1605]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1605

BARBARA H. LEE; GONZALO J. AIDA BRESCIA; DEMOCRATIC PARTY
OF VIRGINIA,
Plaintiffs - Appellants,
v.
VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his
capacity as Chairman of the Virginia State Board of
Elections; DR. CLARA BELLE WHEELER, in her capacity as ViceChair of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her capacity as Secretary of the Virginia
State Board of Elections; VIRGINIA DEPARTMENT OF ELECTIONS;
EDGARDO CORTES, in his capacity as Commissioner of the
Virginia Department of Elections,
Defendants - Appellees.
------------------------------------VIRGINIA ELECTION OFFICIALS AND VOTERS; JUDICIAL EDUCATION
PROJECT,
Amici Supporting Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:15-cv-00357-HEH-RCY)

Argued:

September 22, 2016

Decided:

December 13, 2016

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

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Affirmed by published opinion.
Judge Niemeyer
opinion, in which Judge Shedd and Judge Agee joined.

wrote

the

ARGUED: Bruce Van Spiva, PERKINS COIE LLP, Washington, D.C., for
Appellants. Mark Fernlund Hearne, II, ARENT FOX LLP, St. Louis,
Missouri, for Appellees. ON BRIEF: Marc E. Elias, Elisabeth C.
Frost, Amanda R. Callais, Washington, D.C., Joshua L. Kaul,
PERKINS COIE LLP, Madison, Wisconsin, for Appellants.
Dana J.
Finberg, Sara T. Schneider, San Francisco, California, Kirsten
Hart, Los Angeles, California, Stephen S. Davis, ARENT FOX LLP,
Clayton, Missouri, for Appellees. Michael A. Carvin, Anthony J.
Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici
Curiae.

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NIEMEYER, Circuit Judge:
The plaintiffs challenge Virginia Code § 24.2-643(B), the
voter identification law enacted as part of “SB 1256.”
Acts ch. 725.

2013 Va.

They allege that the statutory requirement that

voters present photo identification when they vote or shortly
thereafter

violates

the

Voting

Rights

Act

of

1965

and

the

voters

are

Constitution.
The

Virginia

law

provides:

(1)

that

all

required to present a photo identification to cast a ballot in
all elections but are allowed, without photo identification, to
cast a provisional ballot subject to “cure”; (2) that voters who
cast provisional ballots can cure their votes by presenting a
photo identification in person, by fax, or by email within three
days

after

the

election;

(3)

that

a

broad

range

of

photo

identification satisfies the photo identification requirement,
including publicly and privately issued forms of identification,
whether current or recently expired; and (4) that if a voter
does not possess an acceptable form of photo identification,
Virginia’s Board of Elections must provide one to the voter free
of charge and without any requirement that the voter present
documentation.

In enacting SB 1256, the Virginia legislature

sought to synchronize its requirements with the Help America
Vote

Act

(“HAVA”),

42

U.S.C.

§

3

15483,

a

federal

law

that

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requires photo identification for first-time voters registering
by mail in federal elections.
The plaintiffs commenced this action challenging SB 1256
under § 2 of the Voting Rights Act, the First Amendment, the
Equal

Protection

Fifteenth

Clause

Amendment,

of
the

and

the

Fourteenth

Twenty-Sixth

Amendment,

Amendment,

the

arguing

that the photo identification requirement “unduly burdens the
right

to

Americans

vote,
and

imposes

Latinos,

discriminatory

and

was

enacted

burdens
with

the

on

African

intent

to

discriminate against minorities, young voters, and Democrats.”
Following a two-week bench trial, the district court found
that the plaintiffs had failed to present evidence sufficient to
support their claims.

From the district court’s final judgment

dated May 19, 2016, the plaintiffs filed this appeal.

For the

reasons that follow, we affirm.

I
Since

1996,

Virginia

has

required

identification before casting ballots.

voters

to

present

Originally, Virginia law

permitted registered voters who lacked identification to vote by
executing an affirmation of identity at their polling places.
In 2012, the General Assembly enacted SB 1, which eliminated the
self-affirmation procedure while broadening the acceptable forms
of identification, some of which were non-photographic.

4

2012

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Va. Acts ch. 839.

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Because § 5 of the Voting Rights Act at that

time subjected Virginia to preclearance by the U.S. Department
of

Justice,

Virginia

submitted

SB

1

for

approval,

and

the

Justice Department approved it.
A

year

later,

on

March

25,

2013,

the

General

Assembly

enacted SB 1256, codified in various sections of Title 24.2 of
the

Virginia

photo

Code

but

identification

principally

for

all

at

voters

§
in

24.2-643,
all

to

require

elections.

This

change synchronized SB 1 and the federal statute HAVA, which
imposed

a

photo-identification

requirement

on

all

individuals

who had registered by mail and were voting for the first time in
a federal election.
identification,

SB

For those who did not have any form of
1256

required

the

Board

of

Elections

to

provide the voter with a free photo ID without requiring the
voter to provide any documentation.
free

photo

IDs

additionally
Virginia.

from

from

the

mobile

133

Voters could obtain these

general

voter-ID

registrars’

stations

offices

located

and

throughout

To obtain a free photo ID, the voter needed only to

provide his or her name, address, birthdate, and the last four
digits of his or her social security number.

The law also

authorized voters to use photo IDs that had expired within the
last year.
Because Virginia was still subject to § 5’s preclearance by
the

Department

of

Justice,

SB
5

1256

was

enacted

with

the

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understanding that it would be evaluated under § 5.
never

subjected

to

preclearance,

however,

The law was

because,

after

SB

1256’s enactment, the Supreme Court held § 5 unenforceable in
Shelby County v. Holder, 133 S. Ct. 2612 (2013).
On June 11, 2015, plaintiffs Barbara H. Lee, an African
American

and

a

Democrat

who

resides

in

Staunton,

Virginia;

Gonzalo J. Aida Brescia, a Latino and a Democrat who resides in
Richmond,
commenced

Virginia;
this

and

action

challenge SB 1256.

the

against

Democratic
Virginia

Party

election

of

Virginia

officials

to

They alleged (1) that SB 1256 violated § 2

of the Voting Rights Act; (2) that SB 1256 imposed undue burdens
on

the

right

to

vote

and

disparate

treatment

of

individuals

without a rational basis, in violation of the First Amendment
and the Equal Protection Clause of the Fourteenth Amendment; (3)
that SB 1256 amounted to “partisan fencing” (a law that fences
out from the voting franchise a sector of the population), in
violation of the First and Fourteenth Amendments; (4) that SB
1256 discriminated on the basis of race in violation of the
Fourteenth

and

Fifteenth

Amendments;

and

(5)

that

SB

1256

violated the Twenty-Sixth Amendment by failing “to take action
to reduce wait times to vote,” thus suppressing the number of
votes cast by young voters.
The district court conducted a seven-day bench trial over a
period of two weeks, beginning on February 22, 2016, and, after
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receiving post-trial briefs, entered final judgment, concluding
that the plaintiffs had “failed to prove by a preponderance of
the

evidence

that

the

Virginia

Voter

ID

law,

either

in

its

enactment or implementation, contravenes the Voting Rights Act,
First Amendment, Fourteenth Amendment, Fifteenth Amendment, or
the Twenty-Sixth Amendment.”

Consistent with this conclusion,

the court dismissed all of plaintiffs’ claims and denied the
plaintiffs’ request for injunctive relief.

In support of its

judgment, the court filed a 62-page Memorandum Opinion, reciting
the governing legal principles and standards, summarizing the
testimony

of

witnesses

presented

by

the

parties,

and

making

findings of fact and conclusions of law.
The court recited the testimony of the Secretary of the
State Board of Elections that SB 1256 was modeled after voter ID
laws

adopted

in

other

States,

such

as

Georgia

and

South

Carolina, that had been precleared by the Department of Justice
pursuant to § 5 of the Voting Rights Act.

The court also found

that, after the enactment of SB 1256, the Board of Elections
“launched a state-wide pre-election campaign informing voters of
the photo identification requirement.”
posting

of

some

500,000

posters

This included the public

describing

the

law

and

the

“sending [of] 86,000 postcards to persons on the active voter
list who, DMV records reflected, possessed no DMV-issued ID and
would likely need a photo ID to vote under the new law.”
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The court found that during the election of 2014, when SB
1256 was in effect, “773 provisional ballots were cast by voters
without valid identification” and that during the election of
2015,

“408

provisional

acceptable

form

of

ballots

were

cast

identification.”

by

voters

One-half

with

of

no

these

provisional ballots were ultimately cured and counted.
The plaintiffs’ evidence about the real-world impact of SB
1256 was presented by 14 voter-witnesses, 2 of whom testified by
deposition.

Assessing this evidence, the district court found

that “none of the voter witnesses was actually denied his or her
right

to

vote,”

cumbersome.”

although

for

some

the

process

was

“a

bit

Of the 14 voter-witnesses, 5 successfully cast

their ballots.

Clayton Stallings had appropriate identification

and could have voted in person, but he voted absentee instead.
Shanna

Samson,

possessed

Alex

appropriate

Highland,
forms

of

and

Josephine

identification

Okiakpe
but

forgot

bring their IDs with them when they went to vote.

all
to

They cast

provisional ballots and cured their ballots by sending copies of
their IDs to the registrar.
appropriate

form

availability

of

of
a

Laning Pollaty did not possess an

identification

free

photo

ID

but
at

was

the

informed

registrar’s

of

the

office.

Pollaty obtained a free photo ID and then cast his ballot.
Of the remaining 9 voter-witnesses, 5 possessed the IDs
needed to cast a vote but did not ultimately do so.
8

Abraham

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Barranca, Jack Etheredge, Ellen Lamb, and Pettus Hilt possessed
appropriate IDs but forgot to bring them when they voted.

While

all of these voters could have cured their provisional ballots
by sending the registrar a copy of their ID, they did not do so.
Charles Benagh possessed appropriate identification but usually
had

voted

absentee,

and

in

2015,

he

failed

to

mail

in

his

absentee ballot.
The circumstances of the remaining 4 voter-witnesses varied
but did not indicate an inability to vote.

Kenneth Adams lost

his Virginia driver’s license prior to the election.

While he

could have obtained a free photo ID, he instead elected to apply
for

a

replacement

license.

That

license,

however,

did

arrive in time for him to cure his provisional ballot.
Bobby

Smith,

Jr.,

attempted

to

vote

but

did

not

not
When

possess

an

appropriate form of identification, he cast a provisional ballot
and

was

told

he

registrar’s office.

could

cure

the

ballot

by

going

attempted

the

He chose not to do so, however, because his

candidate of choice had been declared the winner.
Cotten

to

to

vote

without

an

appropriate

When Megan
form

of

identification, a worker at the polling place failed to tell her
of the possibility of casting a provisional ballot and obtaining
a free photo ID from the registrar.
message

to

Virginia’s

Secretary

Ms. Cotten sent a Twitter
of

the

Commonwealth,

who

replied, informing Ms. Cotten that she should have received and
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could still receive a provisional ballot.

Ms. Cotten, however,

stated that she was unable to take off more time from work and
accordingly did not cast a ballot.

Finally, Mary Joanna Jones

cured her provisional 2014 ballot by receiving a free photo ID
from the registrar’s office.

Due to an error, however, she did

not receive her photo ID in the mail.

When she later called the

registrar, she was informed that her card must have been lost in
the

mail.

When

she

stated

that

she

was

not

able

to

drive

herself to the registrar’s officer to obtain a new photo ID, the
registrar sent someone to her house, who then photographed her
for her new ID, and she received her free photo ID.
Both sides presented expert witnesses, drawn mostly from
the academic community, who presented widely diverse opinions
based

on

statistical

models

and

academic

studies.

The

plaintiffs’ experts concluded that because legislators do not
openly

show

discriminatory

intent,

such

inferred from circumstantial evidence.
Virginia

legislators

had

been

intent

can

only

be

In concluding that the
motivated

by

racially

discriminatory intent, the plaintiffs pointed to the evidence
that the legislators voted on SB 1256 nearly along party lines;
that

there

was

an

absence

of

evidence

of

voter

fraud

in

Virginia, suggesting the absence of any need for SB 1256; that
race was strongly correlated with support for the Democratic
Party

and

that

the

Republican
10

Party

controlled

the

General

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Assembly

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that

legislature
campaigns

enacted

had

for

SB

made

office;

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1256;

subtle
and

that

various

racial

that

the

members

appeals

of

the

during
had

legislature

their
other

on

occasions failed to pass laws favorable to African Americans,
such as the automatic restoration of voting rights to former
nonviolent felons and the expansion of Medicare coverage.
experts

also

noted

that

other

identification

laws

Other

testifying

experts

were

States

largely
on

that

had

controlled

behalf

of

the

passed

by

The
photo

Republicans.

plaintiffs

gave

opinions based on disputed data that a greater percentage of
African

Americans,

identification

than

Latinos,
did

and

Caucasians

young
and

voters

older

lacked

voters.

They

concluded, therefore, that the burden of possessing a photo ID
fell heavier on African Americans, Latinos, and young people.
Virginia’s

experts

criticized

the

conclusions

of

the

plaintiffs’ experts, pointing out what they claimed were flaws
in data and logic and identifying omitted or misreported data.
Nonetheless, they agreed that African Americans were slightly
more likely than Caucasians to lack appropriate identification,
concluding

that

96.8%

of

Caucasians

and

94.6%

of

African

Americans had appropriate IDs.
Virginia’s experts also provided polling data showing that
the

public

overwhelmingly

supported

11

a

photo

identification

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requirement, mainly to prevent fraud and to provide confidence
in the voting process.
Finally,

Virginia’s

experts

found

no

evidence

of

any

discriminatory intent in connection with the enactment of SB
1256.
While the experts on both sides recognized the history of
discrimination

in

Virginia,

they

also,

to

differing

degrees,

noted a significant correction, with a trajectory toward greater
inclusion.

They

pointed

to

the

robust

two-party

system

in

Virginia, to the election of an African American as Virginia’s
governor, and to other similar indicators.
After

considering

this

evidence

and

the

more

detailed

evidence of the legislative debates that took place during the
enactment

process,

the

district

court

underlay its ultimate conclusion.
that

there

history

of

was

no

dispute

discriminatory

that

found

the

facts

that

First, the court concluded
Virginia

policies

and

had

a

“regrettable

practices.”

It

also

found that the evidence confirmed the commonly held assumption
that

African

Democratic

American

party,

voters

although,

tended
in

to

recent

gravitate
years,

an

toward

the

increasing

number of African Americans had run for statewide office on the
Republican ticket, blurring those political lines.
With respect to the impact of SB 1256, the court concluded
that while the law added “a layer of inconvenience to the voting
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process,

it

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appear[ed]

to

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affect

all

voters

equally.”

More

importantly, the court found that none of the voter witnesses
identified any “legal obstacle inhibiting their opportunity to
vote.”

It

found

that

“persons

without

valid

photo

identification were able to cast provisional ballots and cure
them

by

presenting

alternatively,
ballot.”
reaching

they

evidence

were

within

disabled,

three

submitting

days,

an

or

absentee

At bottom, the court indicated that it found itself
the

Crawford v.
(2008)

if

proper

same

conclusion

Marion

County

(announcing

concluded:

the

reached

Election

judgment

by

Justice

Board,
of

the

553

Stevens

U.S.

Court),

in

181,

198

where

he

“[T]he inconvenience of making a trip to the [Bureau

of Motor Vehicles], gathering the required documents, and posing
for a photograph surely does not qualify as a substantial burden
on the right to vote, or even represent a significant increase
over the usual burdens of voting.”
At

bottom,

the

(Emphasis added).

district

court

found

the

evidence

“insufficient to support Plaintiffs’ claim that SB 1256 ha[d]
denied

African

Americans,

Latino,

and

young

voters

an

equal

opportunity to participate in the political process and to elect
representatives of their choice.”
the

plaintiffs’

evidence

failed

It also found as fact that
to

demonstrate

that

SB

1256

“ha[d] an adverse disparate impact on African American or Latino
voters,

impose[d]

a

discriminatory
13

burden

on

those

protected

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classes, or cause[d] anyone to have less opportunity than others
to

participate

recognized
less

in

that

likely”

the

political

process.”

African

to

Americans

have

and

appropriate

While

Latinos

the

were

identifications

court

“slightly
than

were

Caucasians, it found that the burden to obtain an appropriate
identification was the “burden to travel to the DMV or the local
registrar’s

office

identification.”

to

obtain

an

acceptable

form

of

Relying on Crawford, the court concluded that

SB 1256 did not impose “excessively burdensome requirements on
any class of voters.”

553 U.S. at 202.

With respect to the plaintiffs’ claim that the legislature
intentionally

discriminated

on

the

basis

of

race

and

age

in

enacting SB 1256, the court found that the evidence failed “to
show

any

departure

from

normal

legislative

procedures.”

Although it recognized that the enactment of SB 1256 was on a
near-party-line

vote,

robust

from

debate

the
all

bill
sides

was
and

nonetheless
the

subject

debate

lacked

to

a

any

statements by legislators indicating any sort of discriminatory
intent.

In sum, the court concluded:

The extensive testimonial and documentary evidence
offered in this case has failed to reveal by a
preponderance of the evidence that the Virginia
General Assembly, a legislative body composed of 140
Delegates and Senators, enacted the Virginia photo
identification requirement with the intent to suppress
minority and young voters.

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From the district court’s judgment dated May 19, 2016, the
plaintiffs filed this appeal.

II
The plaintiffs first contend that SB 1256 violates § 2 of
the

Voting

Rights

discriminatory
that
This

they

have

burden,

burden
less

Act
on

of

1965

African

opportunity

they

argue,

in

that

Americans
to

vote

results

and

than
from

it

imposes

Latinos,
do
the

a

such

Caucasians.
disparate

inconvenience that the photo identification requirement imposes
on African Americans and Latinos.
Section 2 provides:
(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed
or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the
right of any citizen of the United States to vote on
account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) [similarly
protecting members of a language minority group] of
this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if,
based on the totality of circumstances, it is shown
that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) in that its
members have less opportunity than other members of
the electorate to participate in the political process
and to elect representatives of their choice.
The
extent to which members of a protected class have been
elected
to
office
in
the
State
or
political
subdivision
is
one
circumstance
which
may
be
considered:
Provided, That nothing in this section
establishes a right to have members of a protected
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class elected in numbers equal to their proportion in
the population.
52

U.S.C.

§

requirements

10301
for

identification

(emphasis

proving

of

a

a

added).
§

2

Thus,

violation

qualification,

the

statutory

are:

prerequisite,

(1)

the

standard,

practice, or procedure (“a structure or practice”), (2) which
results in a denial or abridgement of the right to vote (3) on
account of race or color or because the person is a member of a
language minority group (“the protected class”) (4) such that,
in the totality of circumstances, the political process is not
equally open to the protected class (5) in that its members have
less opportunity than others to participate in the process and
elect representatives of their choice.

Congress deliberately

omitted any requirement of showing intent, having “revised § 2
to

make

clear

that

a

violation

[can]

be

proved

by

showing

discriminatory effect alone and to establish as a relevant legal
standard the ‘results test’ applied . . . in White v. Regester,
412 U.S. 755 (1973).”

Thornburg v. Gingles, 478 U.S. 30, 35

(1986) (citation altered).

The Gingles Court noted that the

“essence” of a burdensome structure or practice that violates
§ 2 is its “interact[ion] with social and historical conditions
[that] cause[s] an inequality” in electoral opportunity.

Id. at

47; see also League of Women Voters of North Carolina v. North
Carolina, 769 F.3d 224, 240 (4th Cir. 2014).

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In

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this

case,

the

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structure

or

practice

identified

by

plaintiffs was SB 1256’s requirement that every voter provide a
photo ID either at the time of voting or within three days
thereafter.

The plaintiffs argue that, because members of the

protected class are less likely to possess photo identification,
SB 1256’s requirement imposes an unacceptable, disparate burden
that has the effect of denying African Americans and Latinos an
equal opportunity to vote.

They state, “[W]hat matters . . . is

not

are

how

many

opportunities
denied

minorities
but

equal

simply

being

that

electoral

‘any’

denied

equal

minority

voter

opportunities. . . .

electoral
is

being

[E]ven

one

disenfranchised voter -- let alone several thousand -- is too
many,” quoting League of Women Voters, 769 F.3d at 244.
Virginia

contends

that

there

is

no

evidence

that

any

eligible Virginia voter has been or will be denied an equal
opportunity
person’s

to

vote.

failure

to

It
cast

asserts
a

that

ballot

in

the

evidence

this

case

of

any

was

not

attributable to Virginia’s ID law but to that person’s decision
not to cure a provisional ballot.
The district court resolved this issue, finding a lack of
evidence to support the plaintiffs’ claims:
African Americans, as a demographic block, are by a
slim statistical margin less likely to have a form of
valid
identification.
Neither
this
statistical
conclusion nor Dr. Rodden’s [an expert witness for the
plaintiffs] analysis supports a reliable factual
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finding that African Americans or Latinos are denied
an equal opportunity to participate in the electoral
process. Nothing presented supports a conclusion that
minorities are not afforded an equal opportunity to
obtain a free voter ID.
As described by numerous
witnesses during the course of trial, eligible voters
do not need to present any independent documentation
to obtain a free voter form of identification under
Virginia
Code
§
24.2-643
and
its
implementing
regulations.
The statute simply requires that a
registrant provide her name, address, birthdate, and
social security number and sign the registration form
swearing that the information provided is true and
correct.
A complex § 2 analysis is not necessary to resolve this
issue

because

the

plaintiffs

have

simply

failed

to

provide

evidence that members of the protected class have less of an
opportunity than others to participate in the political process.
Under the law, as borne out by the record, every registered
voter who shows up to his or her local polling place on the day
of the election has the ability to cast a ballot and to have the
vote counted, even if the voter has no identification.

When a

voter shows up without identification, he or she is able to cast
a provisional ballot, which can be cured by later presenting a
photo

ID.

If

the

voter

lacks

an

acceptable

form

of

identification, the voter can obtain a free voter ID with which
to

cure

the

provisional

ballot.

Because,

under

Virginia’s

election laws, every registered voter in Virginia has the full
ability to vote when election day arrives, SB 1256 does not
diminish the right of any member of the protected class to have

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an equal opportunity to participate in the political process and
thus does not violate § 2.
The

plaintiffs

argue

that,

for

some

groups

of

minority

voters, this opportunity is disproportionately burdened because
a lower percentage of minorities have qualifying photo IDs and
the

process

of

obtaining

photo

IDs

requires

those

voters

spend time traveling to and from a registrar’s office.

to
The

Supreme Court has held, however, that this minor inconvenience
of going to the registrar’s office to obtain an ID does not
impose a substantial burden.
U.S.

at

198,

“the

As recognized in Crawford, 553

inconvenience

of

making

a

trip

to

[a

government office], gathering the required documents, and posing
for a photograph surely does not qualify as a substantial burden
on the right to vote, or even represent a significant increase
over the usual burdens of voting.”

553 U.S. at 198 (Stevens,

J., announcing the judgment of the Court); see also id. at 209
(Scalia,

J.,

concurring

in

the

judgment)

(“The

burden

of

acquiring, possessing, and showing a free photo identification
is simply not severe,” and “the State’s interests are sufficient
to sustain that minimal burden”).
Nonetheless, the plaintiffs press their argument further,
asserting categorically that as long as there is disparity in
the

rates

at

identification,

which
§

2

is

different
violated.
19

groups
To

possess
make

this

acceptable
assertion,

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however, the plaintiffs have to make an unjustified leap from
the disparate inconveniences that voters face when voting to the
denial or abridgement of the right to vote.
a

State

makes

in

regulating

its

Every decision that

elections

will,

inevitably,

result in somewhat more inconvenience for some voters than for
others.

For example, every polling place will, by necessity, be

located closer to some voters than to others.
as

prohibiting

any

regulation

that

To interpret § 2

imposes

a

disparate

inconvenience would mean that every polling place would need to
be precisely located such that no group had to spend more time
traveling to vote than did any other.

Similarly, motor-voter

registration would be found to be invalid as members of the
protected class were less likely to possess a driver’s license.
Yet, courts have also correctly rejected that hypothetical.
Frank

v.

Walker,

768

F.3d

744,

754

(7th

Cir.

2014),

See
cert.

denied, 135 S. Ct. 1551 (2015).
We conclude that § 2 does not sweep away all election rules
that result in a disparity in the convenience of voting.

As we

noted in North Carolina State Conference of NAACP v. McCrory,
831 F.3d 204, 241 (4th Cir. 2016), “it cannot be that states
must

forever

tip-toe

around

certain

voting

provisions”

that

would have more effect on the voting patterns of one group than
another.

Rather, § 2 asks us to evaluate whether the Virginia

process has diminished the opportunity of the protected class to
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participate in the electoral process.

If Virginia had required

voters to present identifications without accommodating citizens
who lacked them, the rule might arguably deprive some voters of
an equal opportunity to vote.

But where, as here, Virginia

allows everyone to vote and provides free photo IDs to persons
without them, we conclude that SB 1256 provides every voter an
equal opportunity to vote and thus does not violate § 2 of the
Voting Rights Act.

III
The

plaintiffs

next

contend

that

SB

1256

violates

the

Constitution in that SB 1256 was enacted with the intent to
discriminate
Fourteenth
contention,
history

on
and

basis

Fifteenth

they

when

the

point:

substantial

of

race,

in

Amendments.
to
and

evidence
illegal

violation

In
of

support

Virginia’s

barriers

of
of

the
this

pre-1965

existed

when

minorities voted; to the fact that SB 1256 was enacted only one
year after the General Assembly had enacted SB 1; to various
statements made by legislators during the legislative debate,
including the statements of a state senator insisting that only
an unexpired form of ID should qualify; to the burden imposed on
minorities by requiring a photo ID; to the fact that while the
legislators were debating SB 1256, the Supreme Court granted
certiorari

in

Shelby

County;

to

21

the

fact

that

an

African-

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American President of the United States had been reelected in
2012 and had won Virginia; to the evidence advanced by their
experts that several other States, controlled by Republicans,
had enacted voter identification laws; and to an alleged lack of
any rationale for the law’s enactment other than discrimination
on the basis of race.
striking

down

portions

similar

facts,

which

They argue that our recent decision
of

North

Carolina’s

should

dictate

the

Virginia

points

to

ID

law

outcome

presented

here.

See

McCrory, 831 F.3d 204.
In

response,

plaintiffs’

expert

witnesses

during

which

testimony
they

of

the

conceded

that

there was no direct evidence that Virginia adopted SB 1256 to
discriminate against minorities.
testimony

of

its

own

experts,

Virginia also points to the
who

reviewed

the

legislative

history and public record related to SB 1256 and concluded that
evidence did not support a defensible conclusion that any member
of the legislature voted for SB 1256 with the intent to suppress
the vote of minorities.

Rather, the experts concluded that the

legislature demonstrated support for the bill for reasons other
than vote suppression, such as the prevention of voter fraud and
the promotion of public confidence in the voting system -- in
particular, because “public opinion favored such legislation, a
public perception of potential voter fraud, promoting confidence
in

the

integrity

of

the

electoral
22

system,

and

sound

public

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policy

in

Filed: 12/13/2016

preventing

future

Pg: 23 of 37

acts

of

voter

fraud.”

These

purposes for enacting SB 1256 were corroborated by testimony of
election

officials.

In

addition,

Virginia

presented

some

evidence of voter fraud, as well as the conclusions reached by
the Carter-Baker Commission (chaired by former President Jimmy
Carter and former Secretary of State James Baker), which favored
use of photo identification, because, even though there was no
evidence

of

extensive

fraud

in

U.S.

elections,

“there

is

no

doubt that it occurs” and that “it could affect the outcome of a
close

election.”

Confidence

in

Comm’n

U.S.

on

Elections

Fed.
18

Election
(2005).

Reform,
The

Building

Carter-Baker

Commission also noted that “the perception of possible fraud
contributes to low confidence in the system.

A good ID system

could deter, detect, or eliminate several potential avenues of
fraud -- such as multiple voting or voting by individuals using
the identities of others or those who are deceased -- and thus
it can enhance confidence.”
the

General

Assembly

Id. at 18-19.

considered

the

Virginia showed that

Carter-Baker

Commission

report when adopting SB 1256.
In its Memorandum Opinion, the district court recited the
extensive testimony of various legislators and the historical
facts both with respect to the enactment of SB 1256 and prior
historical facts in Virginia.

After considering the evidence,

the court concluded:
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The
evidence
.
.
.
however
demonstrated
that
irrespective
of
statistics,
a
large
segment
of
Virginia
voters
thought
a
photo
identification
requirement
for
voting
was
a
prudent
safeguard
measure.
As one expert noted, responding to public
concern by passing a law to prevent crime before it
happened amounted to a reasonable action on the part
of the General Assembly.
In fact the Supreme Court
agreed in Crawford.
See 553 U.S. at 197.
Further,
voter confidence, uniformity, and fraud prevention all
stood as legitimate reasons to enact SB 1256.
Additionally,
the
evidence
failed
to
show
any
departure
from
normal
legislative
procedures.
Instead, although ultimately passing on a near-partyline vote, the bill was subject to robust debate from
all sides.
Finally, there was a complete dearth of
statements by legislators indicating any sort of
discriminatory intent.
The extensive testimonial and documentary evidence
offered in this case has failed to reveal by a
preponderance of the evidence that the Virginia
General Assembly, a legislative body composed of 140
Delegates and Senators, enacted the Virginia photo
identification requirement with the intent to suppress
minority and young voters.
The

parties

agree

that

the

standard

for

finding

racial

discrimination under the Constitution in these circumstances is
set

forth

Housing

in

Village

Development

of

Corp.,

Arlington
429

U.S.

Heights
252

v.

Metropolitan

(1977).

See

also

McCrory, 831 F.3d at 220-21.
In Village of Arlington Heights, the plaintiffs contended
that the Village’s denial of a rezoning application to convert a
15-acre

parcel

from

single-family

motivated by racial discrimination.

to

multi-family

homes

was

In addressing the claim,

the Supreme Court articulated the standard that the plaintiffs
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had to satisfy to prove such a claim:
not

be

held

racially

unconstitutional

disproportionate

discriminatory

intent

solely

impact.

or

“[O]fficial action will

.

because

purpose

.

.

is

it

results

Proof

of

required

to

in

a

racially
show

a

violation,” although that purpose need only be “a motivating
factor in the decision.”

Village of Arlington Heights, 429 U.S.

at 264-66 (emphasis added).
whether

invidious

Accordingly, when “[d]etermining

discriminatory

purpose

was

a

motivating

factor,” a court must undertake “a sensitive inquiry into such
circumstantial
available.”

and

direct

evidence

of

intent

as

may

be

Id. at 266.

The Village of Arlington Heights Court then reviewed the
evidence,

acknowledging

that

the

impact

of

the

Village’s

rezoning decision “does arguably bear more heavily on racial
minorities.

Minorities

constitute

18%

of

the

Chicago

area

population, and 40% of the income group said to be eligible for
[the

development

at

issue].

But

there

is

little

about

the

sequence of events leading up to the decision that would spark
suspicion.”

Village of Arlington Heights, 429 U.S. at 269.

The

Court pointed to the fact that the rezoning request progressed
according

to

the

usual

procedures;

that

the

Commission

even

scheduled two additional hearings to accommodate further debate;
that the statements of board members “focused almost exclusively
on the zoning aspects of the . . . petition,” although there may
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have been “reliance by some neighboring property owners on the
maintenance of single-family zoning in the vicinity.”
270.

Id. at

In the end, after applying the announced standard to the

facts presented, the Court concluded that the challengers had
“simply

failed

to

carry

their

burden

of

proving

that

discriminatory purpose was a motivating factor in the Village’s
decision.”
In

Id.

this

case,

the

evidence

intent is similarly lacking.
Virginia’s

election

laws

of

racially

discriminatory

SB 1256 was enacted to streamline
by

imposing

requirements that HAVA imposes on some.

on

all

voters

the

Moreover, in enacting a

photo identification requirement, the Virginia legislature went
out of its way to make its impact as burden-free as possible.
It allowed a broad scope of IDs to qualify; it provided free IDs
to those who did not have a qualifying ID; it issued free IDs
without

any

requirement

of

presenting

documentation;

and

it

provided numerous locations throughout the State where free IDs
could be obtained.

And, as in Village of Arlington Heights, the

legislative process here was normal, with full debate, and no
evidence

was

presented

of

untoward

influences affecting the debate.

external

pressures

or

While there was a substantial

party split on the vote enacting the law, two non-Republicans
(one

Democrat

and

one

Independent)

26

voted

for

the

measure

as

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In short, we conclude that the district court’s factual

findings with respect to this issue were not clearly erroneous.
The

plaintiffs

nonetheless

argue

that

the

circumstances

here are not unlike those in McCrory and that McCrory therefore
requires us to find that SB 1256 was enacted with discriminatory
intent.

This argument, however, fails to understand our holding

in McCrory.
In McCrory, we held that the facts found by the district
court showed that the North Carolina election law was enacted
“with [racially] discriminatory intent,” 831 F.3d at 215, as
revealed by the legislature’s conduct leading up to the law’s
enactment.

We

concluded

that,

based

on

the

totality

of

circumstances, the North Carolina process targeted black voters
with “almost surgical precision.”
for

years,

preclearance

North
by

Carolina’s

the

Id. at 214.

election

Department

of

laws

Justice

As we explained,
were

under

subject
§

5

of

to
the

Voting Rights Act and, under that preclearance regime, “African
American

registration

and

turnout

rates

had

finally

near-parity with white registration and turnout rates.

reached
African

Americans were poised to act as a major electoral force.”

Id.

But, we noted, on the day after the Supreme Court eliminated
§ 5’s preclearance obligations in Shelby County, the Republican
Chairman of the Senate Rules Committee, whose party had been
rarely supported by African Americans, announced the intention
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of enacting a new “omnibus” election law.

Id. at 214, 216.

After the announcement but before the enactment of any law, the
legislature requested data “on the use, by race, of a number of
voting practices.”

Id. at 214 (emphasis added).

And based on

the data, the legislature, acting “swiftly,” enacted legislation
“that restricted voting and registration in five different ways,
all

of

which

disproportionately

Id. at 214, 216.

affected

African

Americans.”

Moreover, the legislature offered “only meager

justifications” for the new provisions.

Id. at 214.

Equally

telling, in its efforts to “rush” the omnibus bill through the
legislative

process,

procedures.”

the

Id. at 228.

legislature

engaged

in

“unusual

As we concluded, “the State took away

minority voters’ opportunity because they were about to exercise
it. . . .
Id.

at

[T]his bears the mark of intentional discrimination.”

215

(alterations

omitted)

(quoting

League

of

United

States Citizens v. Penny, 548 U.S. 399, 440 (2006)).
These facts in McCrory are in no way like those found in
Virginia’s legislative process for the enactment of SB 1256.
While the Virginia legislature knew that certiorari had been
granted in Shelby County when it was conducting its debates on
SB 1256, Shelby County had not yet been decided, and its outcome
was not known.

The Virginia General Assembly thus necessarily

acted as if SB 1256 would be reviewed by the Department of
Justice under § 5 of the Voting Rights Act.
28

In addition, the

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legislative

Filed: 12/13/2016

process

suspicion.”

contained

Village

of

Pg: 29 of 37

no

Arlington

events

that

Heights,

429

would
U.S.

“spark
at

269.

Unlike the departure from the normal legislative process that
occurred in North Carolina, SB 1256 passed as part of Virginia’s
standard legislative process, following full and open debate.
And the legislature did not call for, nor did it have, the
racial

data

McCrory.
target

used

in

the

North

Carolina

process

described

in

Moreover, the provisions included in SB 1256 did not

any

group

of

voters,

let

alone

target

with

surgical

precision.

Indeed, SB 1256 requires photo identification for

all

and

voters

allows

the

use

of

photo

IDs

provided

by

Virginia’s public and private universities, which are, according
to

plaintiffs’

own

witnesses,

disproportionately

possessed

by

young people and African Americans.
Reviewing the totality of the circumstances involved in the
enactment of SB 1256 in light of Village of Arlington Heights
and McCrory, we conclude that the evidence in this case was
insufficient

to

prove

that

racial

discrimination

was

a

motivating purpose for the enactment of SB 1256.

The law was

passed

the

by

the

Virginia

legislature

through

normal

legislative process, and that process was unaccompanied by any
facts

or

circumstances

suggesting

discriminatory intent.

29

the

presence

of

racially

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Pg: 30 of 37

IV
The
enacted

plaintiffs
without

contend

racially

next

that

even

discriminatory

if

SB

1256

was

it

is,

intent,

nonetheless, unconstitutional because it places an undue burden
on the constitutionally protected right to vote.

They point to

the “cumbersome” process faced by those who seek to vote but do
not possess photo identification, noting particularly that in
order to obtain a free photo ID from the government, a voter
must

travel

to

the

registrar’s

office

and

might, for certain plaintiffs, take hours.

that

this

process

They maintain that

this burden is not justified by the public interests identified
by Virginia.

The plaintiffs argue that the evidence shows no

voter-impersonation fraud in Virginia and that, in any event, a
free ID is so easy to obtain that it would not prevent such
fraud.

They

assert,

in

addition,

that

requiring

photo

identification will not increase public confidence in elections
and

also

that

Virginia’s

stated

interest

in

conforming

its

practices to the federal requirements for photo identification
imposed by HAVA was not sufficiently demonstrated.
The

parties

agree

that

the

legal

principles

governing

resolution of this issue are set forth by the Anderson-Burdick
analysis, based on the Supreme Court’s decisions in Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992).

In Anderson, the Court, finding that an early
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filing deadline unduly burdened voting rights, articulated the
analysis to be applied in evaluating a State’s election laws
under the First and Fourteenth Amendments.
recognized

that

there

must

be

“a

First, the Court

substantial

regulation

of

elections if they are to be fair and honest and if some sort of
order,

rather

processes.”

than

chaos,

is

to

accompany

the

democratic

Anderson, 460 U.S. at 788 (quoting Storer v. Brown,

415 U.S. 724, 730 (1974)).

The Court explained further:

To achieve these necessary objectives, States have
enacted comprehensive and sometimes complex election
codes.
Each provision of these schemes, whether it
governs the registration and qualifications of voters,
the selection and eligibility of candidates, or the
voting process itself, inevitably affects -- at least
to some degree -- the individual’s right to vote and
his right to associate with others for political ends.
Nevertheless,
the
States’
important
regulatory
interests
are
generally
sufficient
to
justify
reasonable, nondiscriminatory restrictions.
Id.

After giving this background, the Court then articulated

the governing analysis for a constitutional challenge to a State
law regulating elections, stating:
[A court] must first consider the character and
magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that
the plaintiff seeks to vindicate.
It then must
identify and evaluate the precise interests put forth
by the State as justifications for the burden imposed
by its rule. In passing judgment, the Court must not
only determine the legitimacy and strength of each of
those interests; it also must consider the extent to
which those interests make it necessary to burden the
plaintiff’s rights.
Only after weighing all these
factors is the reviewing court in a position to decide
whether the challenged provision is unconstitutional.
31

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Id. at 789.
In Burdick, the Court further clarified the constitutional
analysis by noting that election laws generally are not subject
to strict scrutiny, even though voting rights are fundamental
under the Constitution.

The Court explained:

The Constitution provides that States may prescribe
“[t]he Times, Places and Manner of holding Elections
for Senators and Representatives,” Art. I, § 4, cl. 1,
and the Court therefore has recognized that States
retain the power to regulate their own elections.
Common sense, as well as constitutional law, compels
the conclusion that government must play an active
role in structuring elections.
Burdick,

504

U.S.

assignments

of

regulation,

the

standard to

at

433.

In

responsibility
Court

every

noted

voting

view

and
that

of

the

these

requirements

applying

regulation

constitutional

“would

a

of

strict

tie

the

State

scrutiny
hands

of

States seeking to assure that elections are operated equitably
and efficiently.”

Id.

be

to

narrowly

importance,”

drawn
a

Thus, while “severe” restrictions “must
advance

reasonable,

a

state

interest

nondiscriminatory

of

compelling

restriction

on

voting rights is justified by a State’s “important regulatory
interests.”

Id. at 434 (internal quotation marks and citations

omitted).
In Crawford, the Supreme Court applied the Anderson-Burdick
analysis in upholding the constitutionality of Indiana’s photo
identification law, which was similar to SB 1256 but in fact

32

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more restrictive.

Pg: 33 of 37

The Indiana law required that voters present

a government-issued photo ID in order to vote, and voters who
did not have such identification could obtain one only if they
presented proof of residence and identity, such as with a birth
certificate.
Court

In conducting the Anderson-Burdick analysis, the

found

that

Indiana

had

a

valid

interest

in

adopting

standards that aligned with federal election statutes, including
HAVA,

where

Congress

had

indicated

a

belief

that

“photo

identification is one effective method of establishing a voter’s
qualification to vote.”

Crawford, 553 U.S. at 193 (Stevens, J.,

announcing the judgment of the Court).

The Court also found

that Indiana had valid interests in preventing voter fraud, even
though

there

impersonation

was
having

no

evidence

occurred

in

of

any

Indiana,

in-person
and

an

voter

independent

interest in protecting voter confidence in the integrity of its
elections.

Id. at 194-97.

interests

justified

the

The Court concluded that these state
burdens

imposed

by

identification requirements in its election law.

the

photo

Id. at 202.

And for voters who lacked the required identification, the Court
explained

the

ability

to

obtain

a

free

photo

identification

meant that the burden was not substantial; the “inconvenience of
making a trip to the BMV, gathering the required documents, and
posing for a photograph surely does not qualify as a substantial
burden on the right to vote.”

Id. at 198.
33

While the Court

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recognized that for some voters, such as those who lacked a
birth certificate or other documentation needed to obtain a free
ID, the burden was greater, it nonetheless concluded that this
greater burden was not sufficiently substantial to render the
statute unconstitutional.
The

Crawford

Id. at 199-202.

Court’s

application

of

the

Anderson-Burdick

analysis to Indiana’s election law controls our resolution of
the issue here.
Indiana
Virginia

law

SB 1256 imposes a lighter burden than did the

challenged

voters

Crawford,

not

are

in

required

particularly
to

present

inasmuch
any

certificate or other documentation to obtain a free ID.

as

birth
Even as

the burden imposed by SB 1256 is lighter, the justifications
that Virginia advances here for SB 1256 are the same as those
advanced

by

Indiana

--

alignment

with

federal

statutes

like

HAVA, prevention of voter fraud, ∗ and the preservation of voter
confidence in the integrity of elections.

Because those same

justifications were held to support the greater burden imposed
∗

In both Crawford and the record here, there was limited
evidence of voter fraud.
Nonetheless, we have, since oral
argument here, seen that the FBI has announced an investigation
into a circumstance where 19 deceased Virginians in Harrisonburg
were recently re-registered to vote. Laura Vozela, He fought in
World War II. He died in 2013. And he just registered to vote
in Va., Wash. Post (Sep. 29, 2016), https://perma.cc/GXV4-BKAG.
And in a separate case, an indictment has been returned in
Alexandria against a man charged with multiple counts of voterregistration fraud. Justin Wm. Moyer, Man who registered voters
for progressive Virginia group charged with fraud, Wash. Post
(Oct. 28, 2016), https://perma.cc/YWX5-TZDW.
34

Appeal: 16-1605

on

Doc: 59

voters

lighter

Filed: 12/13/2016

in

Crawford,

burdens

Accordingly,

we

they

imposed
conclude

Pg: 35 of 37

must,

on

a

fortiori,

Virginia

that

SB

voters

1256

does

justify
by

not

SB

the

1256.

impose

an

unconstitutional burden on the right to vote.

V
Finally, the plaintiffs allege that SB 1256 violates their
rights

under

the

Twenty-Sixth

Amendment.

The

Twenty-Sixth

Amendment provides that “[t]he right of citizens of the United
States, who are eighteen years of age or older, to vote shall
not be denied or abridged by the United States or by any State
on

account

language

of

age.”

parallels

U.S.

the

Const.

language

amend.

of

the

XXVI,

§

Fifteenth

1.

This

Amendment,

which provides similarly that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or
previous condition of servitude.”

U.S. Const. amend. XV, § 1.

Because of the parallel language, the plaintiffs argue that the
Fifteenth Amendment jurisprudence provides the analytical basis
for considering a Twenty-Sixth Amendment claim of discrimination
on the basis of age.

Thus, they maintain that just as SB 1256

imposed an undue burden on African Americans and Latinos, it
also placed an undue burden on “young people.”

35

Appeal: 16-1605

Doc: 59

Filed: 12/13/2016

Pg: 36 of 37

First, it is far from clear that the Twenty-Sixth Amendment
should

be

read

to

create

a

cause

of

action

that

principles from Fifteenth-Amendment jurisprudence.

imports

Even if it

does, however, the plaintiffs point to no evidence in the record
that supports their age-discrimination claim other than their
evidence that African Americans, Latinos, and young people are
less likely to possess photo identifications and that a Virginia
legislator made a passing comment that President Obama had been
focusing on obtaining the support of young voters.
the

Twenty-Sixth

Amendment,

the

Amendment

plaintiffs

functions

would

also

like

need

Moreover, if

the

to

Fifteenth

demonstrate

an

intent to discriminate on the basis of age.

The district court

found

that

that

intended,

the

plaintiffs

either

in

“failed

its

to

enactment

discriminate against young voters.”

show

1256

was

implementation,

or

SB

to

Based on our review of the

record, we agree.

VI
At bottom, just as Congress in HAVA found it beneficial to
the

voting

process

to

Commission
require

process

and

require

photo

found

photo

the

public

IDs,

similarly,

identification

and

perception
just

Virginia
in

all

as

found

of

the
it

the

voting

Carter-Baker

beneficial

elections.

to

Moreover,

Virginia took numerous steps to mitigate any burdens that this

36

Appeal: 16-1605

Doc: 59

Filed: 12/13/2016

Pg: 37 of 37

requirement might impose on voters, suggesting that a benign
purpose underlay SB 1256’s enactment.

It allowed a broad scope

of acceptable forms of identification, which included most IDs
that citizens have and that are reasonably reliable; it allowed
citizens

attempting

provisional

ballots

to

vote

and

without

then

cure

identification
their

to

cast

identification

deficiency within three days; it provided those citizens who
lacked photo identification a free photo ID without the need to
present

any

documentation;

and

it

provided

assistance

to

citizens expressing difficulty in obtaining free IDs.
In sum, not only does the substance of SB 1256 not impose
an undue burden on minority voting, there was no evidence to
suggest racially discriminatory intent in the law’s enactment.
The judgment of the district court is accordingly
AFFIRMED.

37